2000 – 2003
Martin Gebhardt (Dezember 1999 – Februar 2001)
Katharina Uschmann (Januar 2000 – October 2001)
Christina Degenhardt (Apr.2000 – Sept. 2000)
Niedersächsisches Ministerium für Justiz, Bundes- und Europaangelegenheiten
In the 1990s, and most of all in the second half of that decade, the Lower Saxony prison service faced a continuous rise in prison numbers. The numbers have levelled off since then but remain high. They reached such alarming levels that the only remedy envisaged consisted of adding capacity by planning new prisons (press release of 21 January 2000 from the Lower Saxony Ministry of Justice on the opening of prison extensions in Lingen and Meppen as a key step to cut overcrowding in Lower Saxony prisons; Saskia Döhner, “Pro Zelle nur noch ein Mann”, Hannoversche Allgemeine Zeitung, 24 January 2000, p. 4). In the next-door state, Schleswig-Holstein, prison numbers went up so much more moderately as to occasion a comparison of the trend in imprisonment rates between the two states and investigate why they diverged. The study looked into potential drivers of the substantial rise in prison numbers in Lower Saxony during the 1990s. It did this by comparing the two neighbouring Länder, Lower Saxony and Schleswig-Holstein. First, it analysed the trend in police registered crime and the response by the judiciary based on available judicial statistics for 2000 and 2001. Two independent empirical approaches were then pursued: a longitudinal analysis of 1,516 case files on selected offences (data collected and corrected in 2001 and 2002) and a survey of 568 criminal judges and prosecutors (data collected in 2002).
Analysis of judicial statistics
The analysis of prison records, police crime statistics and penal statistics showed that (1) the rise in the adult imprisonment rate in Lower Saxony (35.0% from 1990 to 1998 and 24.3% from 1992 to 1998) was significantly larger than in Schleswig-Holstein (6.5% from 1990 to 1998 and 13.5% from 1992 to 1998), and (2) in both state prison systems the percentage increase in the adult imprisonment rate for non-German prisoners was ten times as large as for German prisoners.
More detailed analysis showed that the numbers of suspects were similar in both Länder, but in Schleswig-Holstein there were fewer prosecutions and fewer suspended sentences, and hence a more generous approach to discontinuing prosecutions and/or a more restrained approach to bringing them than in Lower Saxony.
Non-German accuseds were increasingly frequently sentenced to unconditional imprisonment and also given longer prison sentences, both in Lower Saxony and in Schleswig-Holstein. Yet foreign nationals accounted for a larger proportion of suspects in Lower Saxony than in Schleswig-Holstein.
The analysis of public prosecution service outcome statistics and criminal prosecution statistics indicates that public prosecution service and court practices may be an important source of the changes (see Suhling & Schott, 2001). The analysis of the judicial statistics was consequently followed by a case file analysis and a survey of judicial practitioners.
Case file analysis
The criminal prosecution case file analysis covered data from 1,516 case files on convictions for robbery offences (Sections 249-252 and 255 of the German Criminal Code (StGB) 1975), dangerous/grievous bodily harm (Sections 223a, 224-226 and 229 StGB 1975/94) and aggravated theft (Sections 243-244a StGB 1975/92).
As expected from the criminal prosecution statistics, sentencing was found to differ between the two Länder. The differences related both to the choice of penalty and the average length of unconditional prison sentence per convicted individual. Schleswig-Holstein had a smaller percentage of unconditional prison sentences and a larger proportion of suspended sentences than Lower Saxony. The average length of unconditional prison sentences for robbery offences and aggravated theft was also lower in Schleswig-Holstein than in Lower Saxony.
The crime severity variables included in the analysis showed that the severity of the offences and the prevalence of previous convictions in the cases brought to prosecution and sentencing in Schleswig-Holstein were higher even than in Lower Saxony. In other words, the Schleswig-Holstein judiciary responded more leniently to more severe offences than the Lower Saxony judiciary.
A key role was evidently played by the public prosecution service, both with regard to the crimes it brought to prosecution and with regard to the verdicts it called for in the cases brought. The public prosecution service outcome statistics alone showed that the public prosecution service in Schleswig-Holstein made greater use of the scope for ending a case by dispensing with prosecution under the expediency principle (Sections 153 onwards of the German Code of Criminal Procedure (StPO)). This was confirmed by the data from the case file analysis to the extent that specifically in the case of offences classified as misdemeanours (Section 12 (2) StGB) that are open to dispensation of prosecution (Sections 223a and 243 StGB 1975), there were significantly fewer first-time offenders, i.e. individuals without prior convictions, in Schleswig-Holstein than in Lower Saxony. This was not the case, however, with precisely those robbery offences to which Sections 153 and 153a StPO cannot be applied. This finding can be interpreted as implying that the public prosecution service in Schleswig-Holstein made significantly greater use of the scope for applying the expediency principle than the Lower Saxony public prosecution service. In addition, in both countries, the sentences handed down by the courts were found to correspond strongly with the verdict called for in the public prosecution service representative’s concluding opinion. This finding can be interpreted in either of two ways: either that the courts follow the prosecution’s sentencing recommendations or that the public prosecution services anticipate out of experience the sentence that the court will hand down and incorporate that anticipated sentence in their recommendations. In the first instance, the public prosecutor’s recommendations would have a key impact on court sentencing. Finally, the strong degree of congruity can also be interpreted in terms of the public prosecution services and the courts having common membership of a judicial culture (local or regional), with correspondingly similar views on what sanctions are appropriate for what crime.
The data also showed that foreign accuseds – and most of all those without a residence permit – are given harsher sentences than Germans. This came out in the form of greater risk of being given an unconditional prison sentence and a longer average length of unconditional prison sentence per convicted individual. The group of offences for which this finding was most pronounced comprised aggravated theft, which also plays a more important part in judicial practice than robbery offences and dangerous/grievous bodily harm: as a percentage of all Germans prosecuted under general criminal law, aggravated theft accounted for 2.8% (Lower Saxony) and 3.3% (Schleswig-Holstein); as a percentage of all non-Germans so prosecuted it accounted for 3.6% (Lower Saxony) and 4.4% (Schleswig-Holstein). Even after controlling for offence severity variables, the finding with regard to harsher sentencing still held, albeit on the basis of very small case numbers.
Survey of Lower Saxony and Schleswig-Holstein judicial practitioners
The primary aim of the survey of judicial practitioners was to capture sentencing practice over the last ten years from the perspective of practitioners, how the judiciary in northern Germany deals with accuseds from other cultural backgrounds, and the extent and determinants of any sentencing disparities on the basis of vignettes (summary, fictional case descriptions). The questionnaires were sent out by post and the analysis is based on questionnaires from 568 judicial practitioners, with a response rate of 45% (Sachbericht 2002).
Lower Saxony and Schleswig-Holstein judicial practitioners were in favour of the social sanctioning system on the whole, including the imposition of severe penalties. Within the overall picture, however, opinions varied substantially. Such systematic differences were found in some cases between the different professions and areas of activity. Public prosecutors thus tended to favour harsher penalties and considered the objectives of deterrence and public safety to be more important than did judges. Judges primarily working in juvenile justice generally had less punitive attitudes than practitioners who mostly worked in adult criminal law.
In some aspects, there were differences between the judicial practitioners of the two Länder. Judicial practitioners in Schleswig-Holstein thus considered more lenient penalties to be more appropriate than did judicial practitioners in Lower Saxony. Public prosecutors in Schleswig-Holstein in particular tended to see reasons for reducing sentences in the years prior to 2002. The most pronounced difference between them and judicial practitioners and judges in Lower Saxony was that when it came to reducing sentences they attached special importance to circumstances directed towards the interests of victim protection, property recovery and restitution. They also had the strongest belief that judicial practitioners had become more lenient in their punitive attitudes.
The perception among respondents in both Länder tended to be of a fall in severe sentences over the last decade. They identified the main cause of this as being the increase in negotiated agreements between the parties to criminal proceedings. They saw a particular problem in public pressure towards harsher sentencing, and in an increase in the quantity and severity of offences committed by perpetrators of other cultural backgrounds. The source of these problems was seen in fundamentally different value systems held by such groups, whereas they were not considered very susceptible to influence by differential application of the German sanctioning system.
Integration of the findings
The strong correspondence between the three data sources (aggregate statistics, case file analysis and survey of the judiciary) leads to the conclusion that for the investigated offence types, differences in sentencing severity existed between Lower Saxony and Schleswig-Holstein that not be reduced to differences in offence and offender attributes.
Further, the three data sources presented a picture where Lower Saxony had a relatively ‘prosecution-happy’ public prosecution service that thus passed on comparatively large numbers of cases to a ‘sentencing-happy’ judiciary (relative to Schleswig-Holstein) and then went on to call for the full force of the law in those cases by giving comparatively severe sentencing recommendations. Conversely, the picture that emerged for Schleswig-Holstein was that of public prosecution service policies strongly oriented towards crime prevention and alternatives to punitive jail sentences. A major contributor to this culture may well have been Professor Heribert Ostendorf, prosecutor general from 1989 to 1997, who attached great importance to the minimum use of penal sentences. All the same, for someone with such a strong anti-punishment attitude to reach the rank of prosecutor general in the first place takes an institutional climate that is already very liberal in its own right and a political and institutional culture not entirely unaccustomed to such appointments. Besides, Schleswig-Holstein offered favourable conditions for the activities of a single person in a leadership position to have such an effect, in that it is easier to wield influence over judicial practitioners in a comparatively small state with just four public prosecution services beneath the prosecutor general than in a larger and more complex institutional setting.
Finally, both the analysis of the judicial statistics (likewise Pfeiffer, Kleimann, Petersen & Schott 2004) and the case file analysis showed non-Germans to have a higher risk of both detention on remand and imprisonment following conviction. The highest risk of detention was faced by non-Germans without a secure permanent legal residence status in the form of a residence permit under Sections 5-35 of the then Aliens Act (Ausländergesetz), relating to tourists, persons in transit, foreigners having entered the territory unlawfully, foreigners staying legally, and foreigners solely having permission to stay under Section 55 of the Asylum Procedure Act (Asylverfahrensgesetz). Foreign nationals also faced a heightened risk of remand detention under Section 112 StPO. The survey of the judiciary also showed respondents to have perceived a significant increase in the extent and severity of crime among people of other cultural backgrounds in recent years before 2002, the year of the survey.
In conformity with relevant international analyses (see Tonry, 1997), the exceptional detention levels among non-Germans must fundamentally be seen as a multi-factor phenomenon that, rather than being easily explained by racial prejudices and stereotypes and resulting discrimination by judicial practitioners, is partly a product of the logic of the criminal prosecution system and procedures: If it is expected that someone will avoid criminal prosecution or probationary supervision or that they will not (or will hardly be able to) pay fines – as is the case with the group referred to, consisting of foreign nationals without secure permanent legal residence status – then detention is imposed more readily; this relates both to imprisonment following conviction and detention on remand. In times of open borders and increasing mobility, the risk group comprising foreign nationals without legal residence status is expected to continue growing, and an unaltered judicial criminal prosecution strategy would result in a further rise in the non-German prison population and further compounding of the associated problems. Such problems relate to language barriers, resistance to treatment, the poor range of treatment available, restrictive visiting rules, and restrictive scope for temporary release and leave under administrative regulations on Sections 11, 13 and 35 of the Prison Act (StVollzG).
As the official judicial statistics do not make it possible to control for offence-specific characteristics but do cover all cases, and as the case file sample permits an analysis of offence and offender characteristics but only on the basis of small numbers of cases, the findings gained in this study present a starting point for thinking towards potential follow-up studies. By analysing Federal Central Criminal Register (BZR) data and case file samples for large numbers of cases, such studies could close the gap between the criminal prosecution statistics and the present study.